1. NEW PROP. 65 WARNING REGULATIONS: MORE LITIGATION COMING?
EDUCATION CONFERENCE
NOVEMBER 6-9, 2016
NEW PROP. 65 WARNING REGULATIONS: MORE LITIGATION COMING?
Malcolm Weiss, Esq.
Hunton & Williams LLP

2. INTRODUCTION
The Safe Drinking Water and Toxic Enforcement Act of 1986 aka “Proposition 65”
Overview
Exposure warning and discharge prohibition
Roles -- OEHHA, DOJ, Private
New warning regulations
Impacts to mining industry
Focus on compliance
Materials
Text of new warning regulations
Side by side (old/new) comparison

3. Prop. 65 OVERVIEW
Applies to businesses with 10 or more employees
Requires “clear and reasonable” warnings (HSC §  )
cancer
birth defects or other reproductive harm
Prohibits knowing discharge of listed chemicals into sources of drinking water (HSC §  )
Enforcement:
AG’s Office, DAs, City Attorneys
Individuals acting in the “public interest”
Penalties up to $2,500 per violation, per day!
$2,500 x 365 = $912,500
Attorney fees
Legal/preemption/constitutional challenges generally unsuccessful

4. CHEMICAL LIST Over 900 chemicals listed
Carcinogens – No Significant Risk Level (NSRL)
Reproductive/developmental – Maximum Allowable Dose Level (MADL)
List contains naturally occurring and synthetic chemicals
many in common household or commercial products
foods, drugs, dyes, cleaners, clothing, consumer products
by-products of activities such as mining, chemical processes and fuels.

5. TYPES OF EXPOSURES
Consumer product exposure -- exposure that results from a person’s acquisition, purchase, storage, consumption, or any reasonably foreseeable use of a consumer product, including consumption of a food.
Occupational exposure -- exposure to any employee at his or her place of employment.
Environmental exposure -- exposure that occurs as the result of contact with an environmental source, such as air, water, soil, vegetation, or substances or objects, through inhalation, ingestion, or skin contact. Exposures that are not consumer product or occupational are environmental.
3 for 3

6. CONDITIONS FOR PRIVATE ENFORCEMENT
Brought “in the public interest” by anyone.
No public prosecutor diligently enforcing.
60-Day Notice of Violation
Product or activity at issue
Chemical(s) at issue
Routes of exposures

7. PROP. 65 - UNIQUE ISSUES May be enforced by the public Attorney's fees
Penalties and fees in lieu of penalties
Injunctive relief including
Reformulation (exposure reduction)
Warnings
The burden of proof of exposure
Initially on Plaintiff
But easily switched to Defendant

8. DISCHARGE PROHIBITION
Prohibits discharge of Prop. 65 listed chemicals into sources of drinking water.
“Source of drinking water” means either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.
Historically few such cases, but increasing lately.
Settlements include injunctive terms and monetary payments.

9. SETTLEMENTS 2011 2012 2013 2014 2015 Total # of settlements 338 437
352
663
582
Settlement Payments
$16,286,728
$22,560,022
$17, 409,756
$29,482,280
$26,226,761
Attorney’s fees
$11,941,918
$15,588,766
$12,731,262
$21,047,746
$17,828,941

10. AMENDMENTS: GOVERNOR’S GOALS
Cap or limit attorney’s fees
Require stronger demonstration by plaintiffs that they have information to support claims
Require greater disclosure of plaintiff’s info.
Provide the State with the ability to adjust the level at which warnings are needed
Require more useful information to the public regarding exposures and protections

11. NEW WARNING REGULATIONS
Initial draft published in 2013
Nearly every commercial/industrial sector commented on the proposal
Multiple drafts
Finally approved in August 2016
Effective August 2018

12. WARNING AMENDMENTS
SAFE HARBOR: Voluntary safe harbor language that would be deemed “clear and reasonable”
IMPACTS RELATION BETWEEN MANUFACTURERS AND RETAILERS
SUPPLEMENTAL INFORMATION ALLOWED
NAMING CHEMICALS: At least one chemical has to be named for each endpoint
METHOD OF WARNING TRANSMISSION
WARNING CONTENT
LANGUAGES
INTERNET SALES: Warnings on website, prior to purchase

13. PRODUCT, CHEMICAL AND AREA SPECIFIC SAFE HARBOR LANGUAGE
Specific Warnings Of Interest
Diesel Engine Exposure
Vehicle Exposure
Enclosed Parking Facility Exposure
Petroleum Products
Designated Smoking Area Exposure

14. DIESEL ENGINE EXPOSURE (Except Passenger Vehicle Engines)
Methods of Transmission:
Printed in Owner’s Manual
A label is easily visible to the operator or
On screen display
Content:
WARNING Breathing diesel engine exhaust exposes you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. Always start and operate the engine in a well-ventilated area. If in an enclosed area, vent the exhaust to the outside. Do not modify or tamper with the exhaust system. Do not idle the engine except as necessary. For more information go to

15. VEHICLE EXPOSURE Methods of Transmission:
Printed in Owner’s Manual and
On a label attached to driver’s side front window
Content:
WARNING: Operating, servicing and maintaining a passenger vehicle or off-road vehicle can expose you to chemicals including engine exhaust, carbon monoxide, phthalates, and lead, which are known to the State of California to cause cancer and birth defects or other reproductive harm. To minimize exposure, avoid breathing exhaust, do not idle the engine except as necessary, service your vehicle in a well- ventilated area and wear gloves or wash your hands frequently when servicing your vehicle. For more information go to

16. ENCLOSED PARKING FACILITY EXPOSURE
Methods of Transmission:
On a 20 x 20 inch sign posted at each public entrance to the enclosed parking facility and
Must be in English and any other language in which other entrance signage is in the facility
Content:
WARNING: Breathing the air in this parking garage can expose you to chemicals including carbon monoxide and gasoline or diesel engine exhaust, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to

17. PETROLEUM PRODUCTS Methods of Transmission: Methods in §25604 and
Provided in languages other than English where
other signage is in other languages
Content:
WARNING: Crude oil, gasoline, diesel fuel, and other petroleum products can expose you to chemicals including toluene and benzene, which are known to the State of California to cause cancer and birth defects or other reproductive harm. These exposures can occur in and around oil fields, refineries, chemical plants, transport and storage operations, such as pipelines, marine terminals, tank trucks, and other facilities and equipment. For more information go to:

18. DESIGNATED SMOKING AREA EXPOSURE
Methods of Transmission:
Provided on an 8 ½ by 11 inch sign posted both at the entrance to and within the area in which the exposure occurs
Content:
WARNING: Breathing the air in this smoking area can expose you to chemicals including tobacco smoke and nicotine, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to

19. LISTING OF ASPHALT
OEHHA publicly assessing potentially listing asphalt at the Carcinogen Identification Committee meeting on Nov. 15th, 2016
CIC will discuss whether asphalt should be listed and what priority it should be given. If it is given low priority then there is a chance that it will not be listed at all
It may be superfluous

20. FOCUS ON COMPLIANCE Conduct a compliance assessment
Chemicals of concern
Locations of concern
Warning transmission methods
Warning content
Long form warning or WARNING: Cancer and Reproductive Harm-
Consider up stream and down-stream issues
Evaluate and revise business agreements
WARNING: Entering this area can expose you to chemicals known to the State of California to cause cancer and birth defects or other reproductive harm, including diesel exhaust known to cause cancer, from operating equipment and tobacco smoke known to cause birth defects or other reproductive harm, from smoking areas. For more information go to

21. FOCUS ON COMPLIANCE Understand the new requirements
WARNING: This area contains chemicals known to cause cancer, birth defects and other reproductive harm.
ADVERTENCIA: Al entrar en esta zona puede quedar expuesto a sustancias químicas conocidas en el Estado de California como causante de cáncer, defectos de nacimiento u otros daños reproductivos, incluyendo las emisiones de diesel sabe que causan cáncer, desde el equipo de operación y el humo del tabaco se sabe que causa defectos de nacimiento y otros daños reproductivos, a partir de las zonas de fumadores. Para obtener más información, visite [note translation is not accurate]

22. NEW PROP. 65 WARNING REGULATIONS: MORE LITIGATION COMING?
Malcolm Weiss, Esq.
Hunton & Williams LLP